In these three cases judgments were entered on verdicts returned by less than the whole number of jurors by which they were tried. It has been decided by this court that the territorial act of March 10, 1892, permitting this to be done (Laws Utah 1892, p. 46), was invalid, because in contravention of the seventh amendment to the constitution and the act of congress of April 7, 1874 (18 Stat. 27, c. 80). Publishing Co. v. Fisher, 17 Sup. Ct. 618.

2

Exceptions to the course pursued were sufficiently preserved, and the judgments must be reversed if this court has jurisdiction.

3

The amounts in controversy in each instance were not sufficient to give jurisdiction, and the inquiry is whether the validity of any statute of, or authority exercised under, the United States was drawn in question before the courts below. Act March 3, 1885 (23 Stat. 443, c. 355, § 2).

4

The supreme court of the territory held in Hess v. White, 9 Utah, 61, 33 Pac. 243 (and the decision was followed in these cases), that the act of congress of September 9, 1850 (9 Stat. 453, c. 51, § 6), the organic act of the territory vested in the territorial legislature such unlimited legislative power as enabled it to provide that unanimity of action on the part of jurors in civil cases was not necessary to a valid verdict. But defendants contended that the act of congress as thus interpreted was in violation of the seventh amendment, and the validity of the act was in that way drawn in question. In the view which the supreme court took of the act, it was obliged to subject it to the test of the constitution, and, accordingly, in deciding that the seventh amendment did not require unanimity of action, the court held, in effect, that the act of congress was constitutional, although it empowered the territorial legislature to provide for verdicts by less than the whole number of jurors. The question involved was not matter of construction of the territorial act, but the court discussed its validity, and this depended on the validity of the act of congress giving it the scope which the court attributed to it.

5

In this there was error. In our opinion, the seventh amendment secured unanimity finding a verdict as an essential feature of trial by jury in common-law cases, and the act of congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so.

6

These cases are exceptional, and, under the peculiar circumstances, we think jurisdiction may be maintained.

7

Judgments reversed, and cases remanded to the supreme court of the state for further proceedings.